Eric O'Keefe & Wis. Club for Growth, Inc. v. Schmitz

• Decision Date: 19 June 2014
• Docket Number: Case No. 14-C-139
• Parties: ERIC O'KEEFE and WISCONSIN CLUB FOR GROWTH, Inc., Plaintiffs, v. FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, and DEAN NICKEL, in their official and personal capacities, and GREGORY PETERSON, in his official capacity, Defendants, v. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AMERICAN SOCIETY OF NEWS EDITORS, WISCONSIN BROADCASTERS ASSOCIATION, WISCONSIN FREEDOM OF INFORMATION COUNCIL, and WISCONSIN NEWSPAPER ASSOCIATION, Intervenors, v. UNNAMED INTERVENOR No. 1 and UNNAMED INTERVENOR No. 2, Intervenors.
• Court: U.S. District Court — Eastern District of Wisconsin

ERIC O'KEEFE and WISCONSIN CLUB FOR

GROWTH, Inc., Plaintiffs, v. FRANCIS SCHMITZ, JOHN CHISHOLM,BRUCE LANDGRAF, DAVID ROBLES,and DEAN NICKEL, in their official and personal

capacities, and GREGORY PETERSON, in his

official capacity, Defendants, v. REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, AMERICAN SOCIETY

OF NEWS EDITORS, WISCONSIN

BROADCASTERS ASSOCIATION, WISCONSIN

FREEDOM OF INFORMATION COUNCIL,and WISCONSIN NEWSPAPER ASSOCIATION, Intervenors, v. UNNAMED INTERVENOR No. 1and UNNAMED INTERVENOR No. 2, Intervenors.

Case No. 14-C-139

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: June 19, 2014

DECISION AND ORDER

Two competing motions are currently pending before the Court. First, the Reporters Committee for Freedom of the Press, American Society of News Editors,Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, and Wisconsin Newspaper Association (collectively, the "Coalition") moved to intervene and to unseal all of the documents that the Court has allowed to be filed under seal in this case. Second, two people moved to intervene anonymously for the purpose of maintaining the Court's sealing orders (the "Unnamed Intervenors").

The Unnamed Intervenors are targets of a criminal investigation into conduct which, in the opinion of this Court, and also that of Judge Gregory Peterson, is not illegal. ECF No. 181, O'Keefe v. Schmitz, --- F. Supp. 2d ---, 2014 WL 1795139 (E.D. Wis. May 6, 2014). Still, the Unnamed Intervenors can't defend themselves publicly for fear of violating the investigation's mandate of secrecy. Aside from that restriction, the Unnamed Intervenors simply do not want their private affairs to become public, which is a legitimate and natural reaction when being investigated by law enforcement authorities, and is also a protection afforded any "innocent accused" in a John Doe proceeding. Meanwhile, the plaintiffs in this case — Eric O'Keefe and the Wisconsin Club for Growth — are "willing speakers" regarding the John Doe, and the prosecutors who formerly insisted upon secrecy now want to disregard it. Accordingly, the Unnamed Intervenors' motion to intervene and to proceed anonymously is granted. Fed. R. Civ. P. 24(a); In re Sealed Case, 237 F.3d 657, 663-64 (D.C. Cir. 2001) (targets of FEC investigation have a "legally cognizable interest in maintaining the confidentiality of the documents the FEC seeks to disclose in the public record"). For reasons that will become apparent, the Unnamed Intervenors'interests are not adequately represented by any of the other parties to this litigation.

I.

Upon allowing the Coalition to intervene, the Court invited all of the parties in this litigation to explain their respective positions on the Coalition's motion to unseal. In an about-face from their initial stance, the defendants¹ now support unsealing the entire record in this case. The plaintiffs also support unsealing, with the exception of four documents which, they argue, should remain entirely under seal, and also five documents that should be redacted to some extent. ECF No. 218-2 (Table of Sealed Filings).

As the Court noted when it granted the Coalition's motion to intervene, the motions to seal in this case were granted as a matter of course "out of deference to the secrecy order in the state-court John Doe Proceedings." ECF No. 192, May 7 Decision and Order at 1-2. Indeed, at the very outset of this litigation, the plaintiffs moved for leave to file certain materials under seal because "the John Doe proceeding is governed by a sweeping 'Secrecy Order,' which purports to prohibit the disclosure of virtually all information regarding the investigation — including the nature of and bases for Plaintiffs' constitutional claims and right to relief." ECF No. 3. Thus, the plaintiffs sought leave to file materials under seal "in order to comply with the significant restrictions imposed upon them by the Secrecy Order entered in the John Doeproceeding, . . ." Id. The defendants followed suit upon their initial appearances in this case. See ECF No. 33 ("As already pointed out by Plaintiffs, the John Doe proceeding is governed by a secrecy order that limits the disclosure of information regarding the investigation"). Later, when the defendants asked the Court to stay injunction proceedings pending resolution of their motions to dismiss, the defendants argued that the Secrecy Order hampered their ability to present an effective defense. ECF No. 35. Subsequently, the defendants obtained authorization from Judge Peterson to "use the information, transcripts, documents and other materials gathered in [the John Doe proceedings] for all purposes related to the defense of" this lawsuit. ECF No. 117, Ex. A (Order for Use of Information). All such information, of course, was filed under seal.

Now the defendants, and to some extent the plaintiffs, seek to jettison the Secrecy Order entirely in favor of full-blown public disclosure. The plaintiffs, at least, take a somewhat measured approach. First, they argue that the Coalition's motion should be granted in most respects because they are willing speakers and the public has a right to know about the "enormous injury that Defendants' actions have inflicted on Wisconsin's political and public-policy communities." ECF No. 218, at 5. On the other hand, the plaintiffs seek to keep under seal documents that "while doing little in themselves to advance public understanding of the John Doe investigation, implicate Plaintiffs' First Amendment privilege and, if disclosed at all, would require substantial redactions to protect personal, financial, and other confidential information." Id. at 6.

As for the defendants, they have reversed their previous position. The defendants want everything unsealed under the theory that the John Doe investigation has become so widely publicized that secrecy is no longer justified. Moreover, in response to the plaintiffs' proposal to maintain certain documents under seal, four of the defendants — Milwaukee County District Attorney John Chisholm, his assistants Bruce Landgraf and David Robles (collectively, the Milwaukee Defendants), and Government Accountability Board investigator Dean Nickel — lodged vociferous objections. In a submission that smacks of irony itself,² the Milwaukee Defendants contend that it is "beyond irony that the plaintiffs and their counsel now ask the Court to block media access to the documents that outline the investigation and detail the reasons why the plaintiffs' conduct was subject to scrutiny. Having rarely passed on an opportunity to comment on the 'evidence' and excoriate the defendants in the press, plaintiffs and their counsel ask the Court to be complicit in preventing a public airing of the evidence." ECF No. 221, at 1-2.³ The position of the defendants here is at odds with their duty as prosecutors which is to see that in any John Doe proceeding the rights of the innocent accused are protected in pursuit of a criminal investigation.United States v. Sells Eng'g, Inc., 463 U.S. 418, 424-25 (1983) (grand jury secrecy is "as important for the protection of the innocent as for the pursuit of the guilty"). That duty would seem to dictate that the defendants' position on this issue should coincide with that of the Unnamed Intervenors even though the information gained through the John Doe investigation is being used in this civil action. The defendants by their position appear to seek refuge in the Court of Public Opinion, having lost in this Court on the law.

That being said, Special Prosecutor Francis Schmitz does not resort to such tactics. Schmitz does not affirmatively advocate for unsealing, nor does he oppose it. Moreover, as the Unnamed Intervenors emphasize in their most recent filing, Schmitz concedes that there "may be reason to maintain secrecy in order to protect non-party individuals identified in documents uncovered in the course of the investigation . . ." ECF No. 211, at 3 (emphasis added). Such are the interests of the Unnamed Intervenors, which must be balanced against those of the Coalition, the general public, and the primary parties to this litigation.

II.

The public's right to access court records and documents is well-established. Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). Public scrutiny of the court system promotes community respect for the law, provides a check on the activities of judges and litigants, and fosters more accurate fact-finding. Id. (citingRichmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). The "public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding. That interest does not always trump the property and privacy interests of the litigants, but it can be overridden only if the latter interests predominate in the particular case, that is, only if there is good cause for sealing a part or the whole of the record in that case." Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999).

The public's right of access arises from both the common law and the First Amendment, but neither aspect of the right is absolute. "More general in its contours, the common-law right of access establishes that court files and documents should be open to the public unless the court finds that its records are being used for improper purposes." Grove Fresh at 897. The Court will begin its analysis under the First Amendment because, as courts have recognized, the common law "does not afford as much substantive protection to the interests of the press and the public as does the First Amendment." Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). If the Coalition has no right of access under the First Amendment, it stands to reason that the Coalition has no such right under the common-law as well.

Under the ...